Raess v. Doescher
| Decision Date | 08 April 2008 |
| Docket Number | No. 49S02-0710-CV-424.,49S02-0710-CV-424. |
| Parties | Daniel H. RAESS, M.D., Appellant (Defendant), v. Joseph E. DOESCHER, Appellee (Plaintiff). |
| Court | Indiana Supreme Court |
This is an appeal by defendant Daniel Raess, M.D., a cardiovascular surgeon, challenging a $325,000 jury verdict and judgment on a claim for assault brought by plaintiff Joseph Doescher, a hospital operating room perfusionist (the person who operates the heart/lung machine during open heart surgeries). The Court of Appeals reversed and remanded for a new trial. Raess v. Doescher, 858 N.E.2d 119 (Ind.Ct.App.2006), aff'd on reh'g., 861 N.E.2d 1216 (Ind.Ct.App.2007). We granted transfer and now affirm the judgment of the trial court.1
Appealing the verdict and judgment, the defendant challenges the trial court's denials of (a) his motion for judgment on the evidence challenging the sufficiency of evidence to support the jury's finding of assault, (b) his request to set aside or reduce the award of compensatory damages as excessive, (c) his objections to testimony from the plaintiff's expert witness, (d) his objections to the plaintiff's testimony regarding the doctor's prior offensive conduct, and (e) his tendered instruction on workplace bullying.
In his action against the defendant surgeon, the plaintiff perfusionist sought compensatory and punitive damages for assault, intentional infliction of emotional distress, and tortious interference with employment following a verbal altercation adjacent to the open-heart surgery area at St. Francis Hospital in Beech Grove, Indiana. The trial court granted the defendant's motion for partial summary judgment as to the claims for tortious interference. The jury thereafter returned a verdict in favor of the defendant on the claim for intentional infliction of emotional distress but found for the plaintiff on his assault claim and awarded compensatory but not punitive damages.
The defendant challenges the trial court's denial of his motion for judgment on the evidence incorporated in his motion to correct errors. He alternatively argues (a) that there was no evidence to support liability for assault and seeks entry of judgment in his favor, and (b) that the $325,000 verdict was unsupported or excessive.
A motion for judgment on the evidence should be granted "only when there is a complete failure of proof because there is no substantial evidence or reasonable inference supporting an essential element of the claim." Dahlin v. Amoco Oil Corp., 567 N.E.2d 806, 810 (Ind.Ct.App. 1991). Upon appellate review of a trial court ruling on such a motion, the reviewing court "must consider only the evidence and reasonable inferences most favorable to the nonmoving party." Sipes v. Osmose Wood Preserving Co., 546 N.E.2d 1223, 1224 (Ind.1989), quoting Jones v. Gleim, 468 N.E.2d 205, 206 (Ind.1984).
The defendant first argues that there was no evidence to establish the following: (a) that an assault occurred, (b) that he acted with the requisite intent, or (c) that the plaintiff's reaction was reasonable. The elements of assault were explained to the jury in Instruction 10C, to which neither party objected.
To establish assault, Mr. Doescher [the plaintiff] must prove, by a preponderance of the evidence, that Dr. Raess acted in such a manner that Mr. Doescher was in reasonable fear of imminent harm at the time when Dr. Raess had the ability to inflict harm. No physical contact had to occur so long as Mr. Doescher was reasonably afraid that such contact would occur. If you find from the evidence that Dr. Raess committed an assault upon Mr. Doescher, then Dr. Raess is liable for damages caused by the assault.
Appellant's App'x at 515. Assault is effectuated when one acts intending to cause an imminent apprehension of a harmful or offensive contact with another person. Cullison v. Medley, 570 N.E.2d 27, 30 (Ind.1991). As we have explained, Id., quoting W. Prosser & J. Keaton, PROSSER AND KEATON ON TORTS § 10 (5th ed.1984).
Considering, as we must, only the evidence and inferences favorable to the non-moving party, we find testimony from the plaintiff that the defendant, angry at the plaintiff about reports to the hospital administration about the defendant's treatment of other perfusionists, aggressively and rapidly advanced on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him. The plaintiff backed up against a wall and put his hands up, believing that the defendant was going to hit him, "[t]hat he was going to smack the s**t out of me or do something." Tr. at 484. Then the defendant suddenly stopped, turned, and stormed past the plaintiff and left the room, momentarily stopping to declare to the plaintiff "you're finished, you're history." Id. at 485. In light of this evidence, there has not been a complete failure of proof. To the contrary, there is substantial evidence or reasonable inferences to support the jury's conclusions that an assault occurred, that the defendant acted with the requisite intent, and that the plaintiff's reaction was reasonable.
The defendant next contends that the trial court erred in failing either to set aside the jury's award of $325,000 in compensatory damages or to grant a remittitur dramatically reducing the award to a nominal amount. He argues that compensatory damages for the assault are precluded because the jury found him not liable on the plaintiff's count for intentional infliction of emotional distress, and because the trial court granted him summary judgment on the plaintiff's claim for intentional interference with his employment arrangement with the hospital. The defendant also asserts a claim of insufficient evidence of damages resulting from the assault. The defendant argues that the plaintiff could have returned to work the Monday following the parties' confrontation, that he was already suffering from psychological problems at the time, and that his failure to return to work was due to "his own stubborn pride" and not "because he was afraid" of the defendant.
Jury damage awards are entitled to great deference from appellate courts. Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 462 (Ind.2001). A damage award will not be reversed if it "falls within the bounds of the evidence." Id., quoting Annee v. State, 256 Ind. 686, 690, 271 N.E.2d 711, 713 (1971). We "look only to the evidence and inferences therefrom which support the jury's verdict," and will affirm it "if there is any evidence in the record which supports the amount of the award, even if it is variable or conflicting ..." Manuilov, 742 N.E.2d at 462, quoting Prange v. Martin, 629 N.E.2d 915, 922 (Ind.Ct.App.1994).
We first disagree with the defendant's claims that compensatory damages for the assault are precluded due to the defeat of the plaintiff's counts for intentional infliction of emotional distress and intentional interference with the employment relationship. The defendant sought partial summary judgment asserting the absence of genuine issues of fact that would show the defendant intended to interfere with the relationship or that would show the plaintiff's hospital employment was impaired as a result of the alleged interference. The trial court's grant of the motion did not identify the grounds for its decision, but if granted for either of the reasons espoused by the defendant, it would not foreclose the plaintiff from recovering damages resulting from the defendant's assault. Nor are compensatory damages for the assault precluded by the fact that the jury returned a verdict for the defendant on the plaintiff's claim for intentional infliction of emotional distress. The jury's general verdict on this count does not establish that it was based on the absence of damages but could have resulted from the failure of proof of the requisite elements of the separate tort of intentional infliction of emotional distress.
As to the defendant's claim of insufficient evidence to support the jury's damage award, the evidence is conflicting. In contrast with the evidence emphasized by the defendant to support this claim, the plaintiff testified that the assault detrimentally affected his life in a variety of ways, including his career and earning capacity and his ability to interact with his wife, his family, and people in general. Evidence was presented that, as of the time of the trial, the plaintiff could not return to his work as a perfusionist because of the resulting emotional response, lack of focus, lack of confidence, and inability to make split-second decisions. The plaintiff presented psychiatric testimony that his confrontation with the defendant was the cause of the plaintiff's resulting "major depressive disorder with anxiety and panic disorder," because of which he was unable to return to his previous employment. Tr. at 771-73, 775. While the defendant points to other evidence to dispute these claims, in reviewing a jury verdict, our duty is clear: "[I]f there is any evidence in the record which supports the amount of the award, even if it is variable or conflicting, the award will not be disturbed." Manuilov, 742 N.E.2d at 462. We decline to disturb the jury's award of damages in this case.
The defendant also challenges the testimony of an expert witness, Dr. Gary Namie, arguing that the trial court should not have permitted him to testify as an expert witness...
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